The False Choice: ENDA v. Marriage Equality

February 10, 2011 5:22 pm ET by Kerry Eleveld

A
potentially divisive debate is emerging among some LGBT activists that
sets up a false choice between pushing for employment nondiscrimination
protections or marriage equality at the federal level. I roundly reject
the notion that this is an either-or proposition. As a community, we can
and should work on both issues over the next two years. But it's fair
to say that while I personally believe these two issues are equally as
important, they are not equally situated, and therefore the strategies
we must employ to advance them are distinctly different.

Let's
start with a brief overview of the Employment Nondiscrimination Act
(ENDA) -- which would prohibit employers from firing people on the basis
of their sexual orientation or gender identity -- from my perspective as a
reporter who covered the issue closely over the last two years.

First, regardless of why we failed to pass ENDA in the 111th
Congress, the fact is that we didn't even get a committee vote in
either chamber on the bill in one of the most heavily weighted
Democratic Congresses in recent memory. Many people underestimate just
how devastating that looks to legislative operatives and lawmakers
outside our community. They don't care about the panoply of explanations
for why the vote didn't happen, they only know that it didn't and that
means that either we couldn't muster the votes or the Democratic
leadership did not want to see this bill debated on the floor.

Second,
although I have asked a good number of questions about ENDA and its
prospects for a vote, I still can't tell you why it never happened.
Meanwhile, I can recall with decent clarity nearly every twist and turn
of the battle to pass "don't ask, don't tell" (DADT) repeal. This is not due to
a bias on my part, but is rather indicative of the fact that no one
seemed willing to talk with any specificity about what was or wasn't
happening with ENDA.

And
here is where our community's analysis must begin -- we need to have an
honest conversation about our inability to discuss ENDA and transgender
issues. Last year, when I asked people in our advocacy groups, staffers
on the Hill, and lawmakers about the prospects for passing ENDA, I most
commonly got no information or misinformation. As the bill continued to
languish and the House committee vote was continually delayed, my
questions were increasingly met with indignation and wholesale
assurances that all was going according to plan. But ultimately, all I
found was a brick wall when it came to identifying the hurdles.

Meanwhile,
many in our activist community leveled hostility at any entity that
relayed bad news about the legislation's progress. When the Washington
Blade reported a story in January 2010 entitled "Filibuster Threat Makes
ENDA Unlikely In 2010" in which several anonymous sources sounded the
alarm bells about ENDA's chances, it immediately drew
shoot-the-messenger recriminations from people who criticized the story
for using unnamed sources. This illustrates just what a lighting-rod
issue this has become for LGBT activists -- instead of holding the
powerbrokers in charge of the legislation accountable, activists were
vilifying reporters who were trying to disseminate intelligence about
the bill's state of play. And this is precisely why journalists were
often forced to use anonymous sources on the topic -- no one seemed
willing to speak on the record with any real candor about the topic.

This
has grave implications for our ability to develop a strategy around
ENDA and successfully move the bill. If members of the LGBT community
are incapable of having a forthright conversation about the obstacles to
passing this bill, what does that mean for lawmakers and their ability
to discuss the issue?

This
is a problem, folks. Not just for our elected officials, not just for
our groups, but for our community as a whole. We all have a stake in
ENDA -- it would provide critical protections for the full breadth of the
queer community -- but the battle over transgender inclusion in 2007 has
left us with so many scars that people are afraid to speak up for fear
of the backlash.

Of
course, some discussions are beginning to happen now, but I don't
believe we have really illuminated the problem yet. I have heard people
suggest that we had enough votes to pass the legislation in the House
but never got that vote because the clock ran out. Some have also
hypothesized that DADT repeal and health care sucked up too much time in
the schedule to leave room for ENDA.

From
my perspective, this cannot possibly be the whole story. If we truly
had the votes in the House and yet failed to move the bill through
committee to the floor, then that was a serious strategic misstep even
if it would have stalled in the Senate. Bills live and die by momentum.
They get a chief sponsor and then more sponsors and then a committee
vote and then a floor vote. And maybe they don't pass both chambers one
Congress, but if they make it through one, they are better poised to
pass through both next time around.

So
if we did have the votes and our advocates (lawmakers and groups
included) didn't press the issue, that was a critical error. And the
idea that there just wasn't room in the calendar because of DADT and
health care seems like a red herring as well. Health care was completed
in the House in March of 2010. Attaching "don't ask, don't tell" repeal
to the Defense authorization bill took place two months later in May,
but that was it -- the House had the votes and was ready to go, they were
mostly waiting on the Senate Armed Services Committee to line up the
votes. So something doesn't add up.

Rather
than pointing fingers here, I am simply pointing out that we are miles
away from having the full story about ENDA's demise and I don't see how
we can possibly expect to develop a strategy around an issue that we
can't seem to discuss in full candor.

I
said at the outset of this piece that ENDA and marriage equality were
not equally situated. Though both issues are about creating safety nets
for people who need to protect themselves and their families, they are
not as equally ingrained in the public consciousness. Similar to the
issue of DADT, same-sex marriage has been percolating as part of a
national debate since the early '90s when a Hawaii court ruled that gay
couples might have the right to marry. Marriage is a concept everyone
understands and the American public has watched the marriage equality
battle rip through nearly every state in the country -- some fights being
more high-profile than others.

If
you asked the vast majority of Americans right now whether same-sex
couples can get married, most of them would have a frame of reference
for the question, regardless of whether they answered the question
correctly. But if you asked them whether LGBT people can be legally
fired, my guess is that few of them would have ever even considered the
question. My own personal experience of talking to reasonably
well-informed straight allies is that many have no idea people can still
be fired on the basis of their sexual orientation in 29 states or that
transgender individuals can be fired in 38 states.

Although the marriage issue has been painted by some as an elitist concern pushed by wealthy donors, a New York Times article
last month revealed new Census Bureau data showing that cities like San
Antonio, TX and Jacksonville, FL have the highest concentration of gay
couples raising children in the country. Demographers also found that
black or Latino gay couples were twice as likely as whites to be raising
children. While we cannot definitively say all those couples want to
get married, it is undeniably true that they and their families could
benefit significantly from the protections provided by marriage.

And they could also benefit from the protections provided by ENDA.

This
is exactly why we must work on both issues simultaneously. But ENDA
requires a serious two-year lobbying strategy at the very least. My
sense from talking to Hill staffers and, in some cases, members of
Congress is that many lawmakers still don't know how to broach
transgender issues and, quite frankly, have more questions than answers
on the matter. The House is undoubtedly further along than the Senate,
but work is badly needed in both chambers.

Meanwhile,
high profile court cases regarding both the Defense of Marriage Act and
the Constitutional right of same-sex couples to marry will continue to
provide opportunities for advocates to advance the conversation around
equal marriage rights. It would be an absolute mistake for our community
not to capitalize on stories that will already be making mainstream
headlines in order to sway public opinion and push our political allies.
We must strive to frame this issue to our advantage because antigay
forces are already redoubling their efforts against us.

ENDA
and marriage equality are simply not an either-or proposition.
Fortunately, the resources required to advance each of these issues at
the federal level share similarities but don't infringe on each other.
And choosing between them is not an option.